JOANA EWURABENA OCRAN vs. AMORT SECURITY SERVICES LTD [2020]DLCA8853

Date	2020-05-28
Suit No.	SUIT NO.HI/129/2019
Citation No.	[2020]DLCA8853

OFOE J.A

SOWAH J.A

MENSAH J.A

SAMSON LARDY ANYENINI FOR DEFENDANT/RESPONDENT

F.K. YEBOAH FOR PLAINTIFF/APPELLANT

[2020]DLCA8853
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													<main id="main" class="content" style="min-height: 60rem" >JOANA EWURABENA OCRAN<o:p></o:p>(PLAINTIFF/
APPELLANT)<o:p></o:p>vs.<o:p></o:p>AMORT SECURITY SERVICES LTD<o:p></o:p>(DEFENDANT/ RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO.HI/129/2019&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 28TH MAY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAMSON
LARDY ANYENINI FOR DEFENDANT/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

F.K. YEBOAH FOR PLAINTIFF/APPELLANT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

OFOE J.A, SOWAH J.A, MENSAH J.A<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>OFOE,J.A:<o:p></o:p>This
appeal we will refer to the plaintiff/appellant as the plaintiff as she was in
the trial High Court and the defendant/ respondent also as the defendant.<o:p></o:p>The case
of the parties that governed the trial and the judgment in the trial court can
be stated tersely as follows:<o:p></o:p>The
plaintiff was in need of security for her shops which are located in the
environs of East Legon. For that purpose, she contacted the defendant who
agreed and posted one security guard to surveil the shop over the night, 6pm to
6am. It is not in dispute that the plaintiff paid GHC400 every month.
Unfortunately, on the 31st of May 2016 plaintiff was informed that
burglars during the night had broken into the shop and stolen some items from
the shop. Since she expected the security guard to have alerted occupants of
the area or anybody who could be of assistance to ward of the intrusion but did
not, plaintiff concluded that the security guard was negligent in his
assignment &nbsp;and therefore the defendant
company for whom he works should be responsible in atoning for the loss arising
out of the burglary. Why would the plaintiff insist that the guard was
negligent she provided in paragraph 13 to15 of her statement of claim. We will
come back with details of this pleadings in the course of this judgment.<o:p></o:p>Mention
is also made in her pleadings of the fact that the guard was prosecuted but
acquitted and discharged<o:p></o:p>What
loss was occasioned the plaintiff is provided in paragraph 17 and 18 of the particulars
of claim totaling GH¢458,500.00. The stolen items include assorted wax print,
laces, kente, dresses and jewelry.&nbsp; <o:p></o:p>To
make for the loss she sued the defendant claiming<o:p></o:p>“1.
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Recovery of all the items stolen
from the shop of the plaintiff or in default payment for the total cost of the
items<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Damages for breach of agreement to
continue to provide security services to the shops of the plaintiff.<o:p></o:p>3.
Cost including lawyer’s fees<o:p></o:p>4.
Any other reliefs deemed fit by the honorable court”<o:p></o:p>The
defendant company on its part in her defence created the impression that even
though there was agreement to provide a guard what was provided was a temporary
measure since it was understood that the plaintiff will come back to the
company for a formal written contract. She did not come back and therefore
there was no written contract which would have entitled the defendant to take
inventory of the items to be protected in the shop. It however had a bare
knowledge of the glass and burglar proof aspects of the shop.<o:p></o:p>Its
position on the GHC458,500.00 loss the plaintiff is alleging is to seek strict proof
since it considers the claim of the plaintiff spurious and a contrived
arrangement to deceive the court.<o:p></o:p>At
the conclusion of the trial the court dismissed all the claims of the plaintiff
except the claim for damages for breach of agreement to continue to provide
security services to the shops of the plaintiff.<o:p></o:p>Plaintiff
does not accept the reasoning and conclusion of the trial judge dismissing its
case hence her appeal before us seeking a retrial based on the evidence on
record. Of course since it has as one of the grounds of appeal being the
judgment is against the weight of evidence our duty as spelt out by chain of
authorities, some of which are Koglex Limited (No2) vrs Field(2000)SCGLR 175
and Djin vrs Musa Baako (2007-2008)1 SCGLR 686 is to review the whole
of the record whether the trial judge had misapplied evidence to the prejudice
of the case of the appellant, in this case the plaintiff. If so, on a thorough
review of the evidence, to rectify the error setting aside the trial judgment
either in whole or in part or give judgment that we find appropriate based on
the evidence on record. In performing this appellate function, we take note of
the authoritative position taken by case law that we do not disturb findings of
the trial court except where certain conditions are found pervasive in the
judgment. Is or are the findings of the trial judge supportable by the records,
has there been a misapplication of the law to the evidence, leading</main>